Chapter 949

949.06(1)(e)2. 2. The department shall deduct from the amount calculated under subd. 1. an amount equal to benefits the dependents received or are to receive, over the course of 4 years, as a survivor benefit from the federal social security program.

949.06(1)(e)3. 3. The department shall deduct from the amount calculated under subd. 1. the amount of any life insurance proceeds the dependents received as a result of the victim’s death.

949.06(1)(f) (f) Reasonable and necessary costs associated with securing and cleaning up a crime scene, not to exceed $1,000.

949.06(1m) (1m) 

949.06(1m)(a) (a) In this subsection, “family member” means any spouse, domestic partner under ch. 770, parent, grandparent, stepparent, foster parent, child, stepchild, adopted child, grandchild, foster child, brother, sister, half brother, or half sister.

949.06(1m)(b) (b) In accordance with this subchapter, the department shall make awards, as appropriate, to persons who, immediately prior to the crime, lived in the same household with and to family members of a victim of s. 940.01, 940.02, 940.05, 940.06, 940.07, 940.08 or 940.09 for any of the economic losses specified in sub. (1) as a result of the person’s or family member’s reaction to the death. A dependent may recover both under sub. (1) and this subsection, subject to the limitation under s. 949.08 (1m) (a).

949.06(3) (3) Any award made under this section shall be reduced by the amount of any payment received, or to be received, as a result of the injury or death:

949.06(3)(a) (a) From, or on behalf of, the person who committed the crime.

949.06(3)(b) (b) From insurance payments or program, including worker’s compensation and unemployment insurance. The department may reduce an award related to a crime under s. 346.62 (4), 346.63 (2) or (6), 940.09, 940.10, or 940.25, if the victim was not in compliance with s. 344.62 (1) at the time of the crime, by an amount equal to the payment the victim would have received from an insurance program or payment if the victim had been in compliance with s. 344.62 (1). The department may not reduce an award by an amount received or to be received from an insurance payment or program if it has deducted that amount from an award for economic loss under sub. (1) (e) 3.

949.06(3)(c) (c) From public funds.

949.06(3)(e) (e) From one or more 3rd parties held liable for the offender’s acts.

949.06(3)(f) (f) From an award under s. 949.26.

949.06(4) (4) 

949.06(4)(a) (a) An award may be made whether or not any person is prosecuted or convicted of any offense arising out of such act or omission.

949.06(4)(b) (b) The department may suspend proceedings under this subchapter for a period it deems appropriate on the grounds that a prosecution for an offense arising out of the act or omission has been commenced or is imminent.

949.06 History History: 1975 c. 344, 421; 1977 c. 239; 1979 c. 198; 1981 c. 20, 314; 1985 a. 242; 1987 a. 27; 1993 a. 16, 446; 1997 a. 27, 39; 2003 a. 33; 2007 a. 20; 2009 a. 28, 276; 2015 a. 350.

949.06 Cross-reference Cross-reference: See also ch. Jus 11, Wis. adm. code.

949.07 949.07 Manner of payment. The award may be paid in a lump sum or in periodic payments. The department may pay any portion of an award directly to the provider of any service which is the basis for that portion of the award. No award may be subject to execution, attachment, garnishment or other process, except that an award for allowable expense is not exempt from a claim of a creditor to the extent that the creditor provided products, services or accommodations the costs of which are included in the award.

949.07 History History: 1975 c. 344; 1979 c. 189; 1981 c. 20; 2015 a. 350.

949.08 949.08 Limitations on awards.

949.08(1) (1) No order for the payment of an award may be made unless the application was made within 1 year after the date of the personal injury or death, and the personal injury or death was the result of an incident or offense which had been reported to the police within 5 days of its occurrence or, if the incident or offense could not reasonably have been reported within such period, within 5 days of the time when a report could reasonably have been made. The department may waive the requirements under this subsection in the interest of justice.

949.08(1m) (1m) 

949.08(1m)(a) (a) Except as provided in par. (b), the department may not make an award of more than $40,000 for any one injury or death and the department may not make any award for expenses incurred after 4 years from the date of the injury or death.

949.08(1m)(b) (b) If an applicant was a child at the time of the injury, the department may consider for payment eligible expenses that the applicant incurred not more than 1 year before he or she submitted an application for an award under this subchapter. The department may not make any award after 4 years have passed since the date the person made the application or after 4 years have passed since the date on which the person incurred the expense prior to submitting the application, whichever occurs first.

949.08(2) (2) No award may be ordered if the victim:

949.08(2)(a) (a) Engaged in conduct which substantially contributed to the infliction of the victim’s injury or death or in which the victim could have reasonably foreseen could lead to the injury or death. This does not apply to awards to victims under s. 949.03 (1m).

949.08 Note NOTE: The cross-reference to s. 949.03 (1m) was changed from s. 949.03 (1) (a) by the legislative reference bureau under s. 13.92 (1) (bm) 2. to reflect the renumbering under s. 13.92 (1) (bm) 2. of s. 949.03 (1).

949.08(2)(b) (b) Committed a crime which caused or contributed to the victim’s injury or death.

949.08(2)(d) (d) Has not cooperated with appropriate law enforcement agencies.

949.08(2)(e) (e) Is an adult passenger in the offender’s vehicle, the crime involved is specified in s. 346.63 (2) or 940.25, and the passenger knew the offender was under the influence of an intoxicant, a controlled substance, or another drug to a degree that renders him or her incapable of safely driving. This paragraph does not apply if the victim is also a victim of a crime specified in s. 940.30, 940.305, 940.31 or 948.30.

949.08(2)(em) (em) Is an adult passenger in the offender’s commercial motor vehicle, the crime involved is specified in s. 346.63 (6) or 940.25, and the passenger knew the offender was under the influence of an intoxicant, a controlled substance, or another drug to a degree that renders him or her incapable of safely driving. This paragraph does not apply if the victim is also a victim of a crime specified in s. 940.30, 940.305, 940.31, or 948.30.

949.08(2)(f) (f) Has not cooperated with the department in the administration of the program.

949.08(2)(g) (g) Is included on the statewide support lien docket under s. 49.854 (2) (b), unless the victim provides to the department a payment agreement that has been approved by the county child support agency under s. 59.53 (5) and that is consistent with rules promulgated under s. 49.858 (2) (a).

949.08(2m) (2m) If a claimant other than a victim has not cooperated with the department in the administration of the program, no award may be ordered for the claimant.

949.08(3) (3) No award may be made to any claimant if the award would unjustly benefit the offender or accomplice.

949.08 History History: 1975 c. 344, 421; 1979 c. 189; 1981 c. 20; 1983 a. 199; 1985 a. 242, 337; 1987 a. 27; 1987 a. 332 s. 64; 1989 a. 105, 140; 1991 a. 277; 1995 a. 404, 448; 1999 a. 9; 2003 a. 30, 97, 326; 2015 a. 350 ss. 22, 26 to 29; s. 13.92 (1) (bm) 2.

949.09 949.09 Effect of conviction. If any person has been convicted of any offense with respect to an act or omission on which a claim under this subchapter is based, proof of that conviction shall be taken as conclusive evidence that the offense has been committed, unless an appeal or any proceeding with regard thereto is pending.

949.09 History History: 1975 c. 344; 2007 a. 20.

949.11 949.11 Hearings.

949.11(1) (1) The procedure of ch. 227 for contested cases applies to hearings under this subchapter except as otherwise provided in this section and ss. 949.12 and 949.14.

949.11(2) (2) The division of hearings and appeals in the department of administration shall appoint hearing examiners to make findings and orders under s. 227.46 and this subchapter.

949.11(3) (3) All hearings shall be open to the public unless in a particular case the examiner determines that the hearing, or a portion thereof, shall be held in private having regard to the fact that the offender has not been convicted or to the interest of the victim of an alleged sexual offense.

949.11 History History: 1975 c. 344; 1977 c. 239; 1979 c. 189; 1985 a. 182 s. 57; 1985 a. 242, 332; 2007 a. 20.

949.115 949.115 Subpoenas. The department or any of its authorized agents may issue subpoenas for persons or records for any investigation or hearing conducted under this subchapter and may enforce compliance with such subpoenas as provided in s. 885.12.

949.115 History History: 1981 c. 20; 2007 a. 20.

949.12 949.12 Condition of claimant. There is no privilege, except privileges arising from the attorney-client relationship, as to communications or records relevant to an issue of the physical, mental or emotional condition of the claimant or victim in a proceeding under this subchapter in which that condition is an element.

949.12 History History: 1979 c. 189; 1981 c. 20; 2007 a. 20.

949.13 949.13 Agency cooperation. Upon request by the department, any state or local agency, including a district attorney or law enforcement agency, shall make available all reports, files and other appropriate information which the department requests in order to make a determination that a person is eligible for an award under this subchapter.

949.13 History History: 1981 c. 20; 1985 a. 242; 2007 a. 20.

949.14 949.14 Attorney fees.

949.14(1) (1) The department may determine and allow reasonable attorney fees to be paid out of, but not in addition to, the amount of the award granted to a claimant. No attorney may ask for, contract for or receive any larger sum than the amount so allowed. Attorney fees shall not exceed 10 percent of the amount the attorney assisted the victim in obtaining.

949.14(2) (2) The department shall provide for payment of such fee directly to the person entitled thereto.

949.14(3) (3) Whoever charges a fee in violation of sub. (1) shall forfeit double the amount retained by the attorney. This forfeiture shall be collected by this state in an action in debt, upon complaint of the department. Out of the sum recovered, the court shall direct payment to a claimant in the amount of the overcharge.

949.14 History History: 1975 c. 344, 421; 1977 c. 239; 1979 c. 189; 1985 a. 242; 1993 a. 490.

949.15 949.15 Department subrogation rights.

949.15(1) (1) Whenever the department orders the payment of an award under this subchapter as a result of the occurrence of an event that creates a cause of action on the part of a claimant against any person, the department is subrogated to the rights of the claimant and may bring an action against the person for the amount of the damages sustained by the claimant. If an amount greater than that paid under the award order is recovered and collected in any such action, the department shall pay the balance to the claimant. If the person responsible for the injury or death has previously made restitution payments to the general fund under s. 973.20, any judgment obtained by the department under this section shall be reduced by the amount of the restitution payments to the general fund.

949.15(2) (2) In addition to the authority of the department to bring an action under sub. (1), the claimant may bring an action to recover damages. In any such action, the department has subrogation rights under sub. (1) and the claimant shall join the department as a party under s. 803.03 (2) (a). After joinder, the department has the options specified in s. 803.03 (2) (b).

949.15(3) (3) If a judgment or verdict in an action under sub. (1) or (2) indicates separately economic loss and noneconomic detriment, payments on the judgment shall be allocated between them in proportion to the amounts indicated. In such an action, the judge, on timely motion, shall direct the jury to return a special verdict, indicating separately the awards for noneconomic detriment, punitive damages and economic loss.

949.15 History History: 1975 c. 344; 1979 c. 189; 1981 c. 20; 1985 a. 242; 1987 a. 398; 1993 a. 157; 2007 a. 20.

949.15 Annotation Discussing election of remedies, retroactivity, joinder, statute of limitations, and subrogation. Bruner v. Kops, 105 Wis. 2d 614, 314 N.W.2d 892 (Ct. App. 1981).

949.15 Annotation Although a county was vicariously liable for damages due to injury, it was not a “person responsible for the injury.” As such, no subrogation was required. Hamed v. Milwaukee County, 108 Wis. 2d 257, 321 N.W.2d 199 (1982).

949.15 Annotation The Department of Justice, Crime Victim Compensation Program is not an entity that is separate and distinct from the state. The program is an arm of the state and is considered stateless for diversity purposes under federal law. Bosse v. Pitts, 455 F. Supp. 868 (2006).

949.16 949.16 Confidentiality of records. The record of a proceeding before an examiner or the department under this subchapter is a public record. Any record or report obtained by an examiner or the department, the confidentiality of which is protected by any other law or rule, shall remain confidential.

949.16 History History: 1975 c. 344; 1977 c. 29; 1979 c. 189; 2007 a. 20.

949.165 949.165 Escrow accounts; moneys received as a result of the commission of a serious crime.

949.165(1) (1) Definitions. In this section:

949.165(1)(a) (a) “Serious crime” has the meaning designated in s. 969.08 (10) (b) and includes solicitation, conspiracy or attempt to commit a serious crime.

949.165(1)(b) (b) “Victim” has the meaning specified in s. 950.02 (4).

949.165(2) (2) Payment to and establishment of escrow accounts. Every person or other legal entity contracting with any person, or the representative or assignee of any person, accused or convicted of a serious crime in this state, with respect to the reenactment of the serious crime, by a movie, book, magazine article, tape recording, phonograph record, radio or television presentation or live entertainment of any kind, or from the expression of the accused or convicted person’s thoughts, feelings, opinions or emotions regarding the serious crime, shall submit a copy of the contract to the department and pay over to the department any moneys which would otherwise, by terms of the contract, be owing to the person so accused or convicted or his or her representatives. This subsection applies only if the reenactment of the serious crime constitutes a substantial portion of the movie, book, article, recording, record, presentation, entertainment or expression. The department shall deposit the moneys in an interest-bearing escrow account for the payment of money judgments to any victim or the legal representative of any victim of serious crimes committed by:

949.165(2)(a) (a) The convicted person; or

949.165(2)(b) (b) The accused person, but only if the accused person is eventually convicted of the serious crime charged.

949.165(3) (3) Notice to potential claimants. The department, at least once every 6 months for 3 years from the date it receives the moneys, shall cause to have published a legal notice in newspapers of general circulation in the county in which the serious crime was committed advising the victims that the escrow moneys are available to satisfy money judgments under this section. The department may provide for additional notice. When the department is reasonably satisfied that all victims have received actual notice, the department may cease to provide the notice required under this subsection.

949.165(4) (4) Priority of payments.

949.165(4)(a) (a) Claims on moneys in an escrow account have the following priority:

949.165(4)(a)1. 1. First priority for legal representation payments under sub. (5).

949.165(4)(a)2. 2. Second priority for payments to satisfy money judgments under sub. (6).

949.165(4)(a)3. 3. Third priority for reimbursement, recoupment and restitution payments under sub. (7).

949.165(4)(b) (b) The department shall make payments from escrow accounts in accordance with the priority schedule under par. (a). The department may make payments at any time from an escrow account, except that no payment may be made for a claim if there is another existing or pending claim entitled to a higher priority.

949.165(4)(c) (c) If the amount of claims for the same priority exceeds the amount of moneys available in an escrow account, the department may prorate the payments.

949.165(5) (5) First priority payments; legal representation. The department shall make payments from an escrow account to a person charged with a serious crime upon the order of a court of competent jurisdiction after a showing by the person that the moneys shall be used for the exclusive purpose of his or her legal representation in a criminal action or in the defense of a civil action.

949.165(6) (6) Second priority payments; satisfaction of money judgments.

949.165(6)(a) (a) The department shall make payments to victims or legal representatives of victims of serious crimes who have obtained money judgments against the accused or convicted person. The victim or legal representative of the victim shall bring a civil action and obtain a money judgment. The victim shall then file a claim with the department for payment.

949.165(6)(b) (b) In the case of death of the victim, one or more dependents may obtain a payment under this section in the same manner as a victim. If 2 or more dependents are entitled to payments under this subsection, the department shall apportion the payments among the dependents.

949.165(6)(c) (c) If the state is subrogated to a cause of action under s. 949.15, the state may seek reimbursement under this subsection. If the judgment is apportioned under s. 949.15 (3), the payments under this subsection shall be prorated accordingly.

949.165(6)(d) (d) The victim or the legal representative of a victim shall notify the department when he or she brings the action described in par. (a), but failure to notify under this paragraph does not bar any payment from an escrow account.

949.165(7) (7) Third priority payments; legal fees and restitution. The department shall make payments from an escrow account for any governmental entity for the reimbursement for or recoupment of the costs of legal representation of the person charged with the serious crime or for any unpaid restitution under s. 973.20. The governmental entity shall file a claim for the applicable amount with the department.

949.165(8) (8) Payment to accused or convicted person. If either of the following conditions occur, the department shall pay all of the remaining moneys in an escrow account to the accused or convicted person:

949.165(8)(a) (a) The charges against the person are dismissed with prejudice or the person is found not guilty of the serious crime charged.

949.165(8)(b) (b) Three years have elapsed from the date of the establishment of the escrow account and no civil actions seeking money judgments, unsatisfied money judgments or claims under this section are pending against the defendant in this state.